Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit

3-5-2007

USA v. Robinson Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5330

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 05-5330

UNITED STATES OF AMERICA

v.

SHAWN ROBINSON,

Appellant

Appeal from the United States District Court for the District of New Jersey (D.C. No. 04-cr-00421) District Judge: Honorable Jerome B. Simandle

Submitted under Third Circuit LAR 34.1(a)

February 27, 2007

Before: McKEE, and ALDISERT, Circuit Judges, and RESTANI,1 Judge

(Filed:March 5, 2007)

1 Chief Judge, United States Court of International Trade, sitting by designation. OPINION OF THE COURT

ALDISERT, Circuit Judge.

On May 4, 2005, Shawn Robinson pleaded guilty to 10 counts of cocaine

possession with the intent to distribute. See

(a)(1), (b)(1)(C). The

District Court for the District of New Jersey sentenced Robinson to 150 months’

imprisonment and three years’ supervised release. Robinson now appeals his punishment.

He contends that the use of hearsay evidence at his sentencing hearing violated his Sixth

Amendment right to confront his accusers. We conclude that Appellant’s argument lacks

merit and, accordingly, we will affirm the judgment of the District Court.

I.

The parties are familiar with the facts and proceedings, so we will only briefly

revisit them here. During a 10-month police investigation in Penns Grove, New Jersey,

Robinson sold undercover informants approximately 167 grams of cocaine and 62 grams

of crack cocaine. Robinson was subsequently arrested and charged with a twelve-count

indictment. In May of 2005, he signed a plea agreement; the government dropped two

charges of crack cocaine possession and Robinson pled guilty to 10 counts of cocaine

possession with intent to distribute.

At the sentencing hearing, to the surprise of the prosecutor, Robinson claimed that

he was set up by the government. He insisted that he only sold drugs to the undercover

2 informant, and only as a result of the informant’s prodding. To rebut this contention,

Sergeant Brian Facemyer of the Salem County Narcotics Task Force presented hearsay

testimony that Robinson sold drugs to at least seven different buyers. Facemyer

explained that seven of Robinson’s regular customers provided taped, sworn statements

admitting that they had purchased cocaine from Robinson. Based on their admissions, six

of the buyers then pleaded guilty to drug-related offenses.

Concerned about his credibility, Robinson challenged the introduction of

Facemyer’s hearsay testimony. Appellant argued that under the Sixth Amendment’s

Confrontation Clause he had the right to cross-examine the seven individuals who

accused him of dealing cocaine. The Confrontation Clause guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. To support his position, Robinson cited

Crawford v. Washington, a Supreme Court case that examines the Sixth Amendment right

to confront accusers at trial.

(2004). The District Court rejected Appellant’s

argument and considered Facemyer’s testimony in fashioning Robinson’s sentence.

Robinson now appeals.

II.

This case asks us to decide if the Sixth Amendment’s Confrontation Clause

prevents the government from introducing hearsay evidence during sentencing hearings.

Put another way: do criminal defendants have the right to cross-examine out-of-court

3 witnesses during the sentencing phase? The law on this issue is well settled. Both the

Supreme Court and this Court of Appeals have determined that the Confrontation Clause

does not apply in the sentencing context and does not prevent the introduction of hearsay

testimony at a sentencing hearing. See Williams v. Oklahoma,

(1959);

United States v. Kikumura,

(3d Cir. 1990) (holding that the

Confrontation Clause only applies at trial, not sentencing).

Robinson makes a valiant attempt to outflank the clear precedent of this Court. He

argues that the Supreme Court’s recent decision in Crawford v. Washington mandates

that we reevaluate how the Sixth Amendment applies to sentencing. We disagree. In

Crawford, the Supreme Court held that in a criminal trial the Confrontation Clause

prohibits consideration of out-of-court testimonial statements, unless the witness is

unavailable and the defendant has had a previous opportunity to conduct cross-

examination.

. Crawford, however, never applies its rule to sentencing;

nowhere does the decision refer to sentencing hearings. Crawford, therefore, provides no

platform to reverse prior Supreme Court decisions that expressly allow the introduction of

hearsay evidence in the sentencing context.2

Prosecutors, of course, may not introduce any and all hearsay testimony at a

2 We also note that none of our sister Courts of Appeals have interpreted Crawford to apply to sentencing hearings. See United States v. Chau,

(11th Cir. 2005); United States v. Luciano,

(1st Cir. 2005); United States v. Roche,

(7th Cir. 2005); United States v. Martinez,

(2d Cir. 2005).

4 sentencing proceeding. The admission of hearsay statements in the sentencing context is

subject to the requirements of the Due Process Clause. Under the precedent of this Court,

hearsay statements must have some “minimal indicium of reliability beyond mere

allegation.” Kikumura,

(citations omitted); see also U.S.S.G. §

6A1.3(a) (courts may consider any evidence at sentencing “provided that the information

has sufficient indicia of reliability to support its probable accuracy”). The evidence

offered by the Government through the testimony of Sergeant Facemyer easily passes this

test. The District Court noted that Facemyer’s testimony was supported by audiotapes of

Robinson talking with his buyers and taped sworn statements of those buyers admitting

they purchased cocaine from Robinson on multiple occasions. Considering the footprint

left by this evidence, the District Court’s decision to allow the hearsay testimony was

warranted. Accordingly, we affirm the sentence imposed by the District Court.

******

We have considered all contentions presented by the parties and conclude that no

further discussion is necessary. The judgment of the District Court will be affirmed.

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